Saturday, June 10, 2006

Letter and Spirit of the Law

In a brilliant analysis of the Enron affair, Business Week magazine reduced the problem to one of obeying the letter of the law while subverting its spirit. Skilling was a master of adhering to the letter of the law, the article argues, on which the Enron style was centered:

The Enron trial was at heart about the difference between the letter of the law and its spirit. It was the most complicated of the half-dozen or more big corporate corruption cases that have come to trial, not just because of the scope of the meltdown, but because the fraud at Enron was accompanied by the most obsessive and careful concern for the letter of the law.

The most beautiful analysis of the trial, and the general issue of letter and spirit of the law, to which this blog is dedicated, came in the middle of the article:

A trial by definition is about the letter of the law, but in starting the way he did, Berkowitz pointed out that you can't reliably interpret the letter without talking about its spirit as well. That was the thing Skilling couldn't see.

One day, I hope that Muslims can recognize the same point: the law is meaningless without understanding the maqasid. In the area of Islamic jurisprudence of financial transactions, Abdul-Wahhab Khallaf said it best: the law is there to serve certain ends, and the ends are more important than the mechanics of the law.

3 Comments:

brilliant illustration of respecting the letter of the law and compromising on the spirit of the law. i think more examples can be found in contemporary Islamic economics/finance

another interesting phenomenon is how the same law is embraced or repudiated based on personal values.

Shariah law is commonly rejected by the west as 'barbaric'. however when the same 'barbaric' law offers commercial exploitation opportunities, its embraced with open arms.

for instance i found it really hypocritical that britain aspires to be a global centre for shariah law based islamic finance, as it satisfies british values, while it will never accept setting up of shariah law to govern their muslim community, as it does not satisfy british values .

- this truely is the role for scholars not me nor you. we just go to identify scholars, give them a broader stage than what they enjoy today and follow them holding on strongly to their cloak. there is more benefit in agreeing with them even when we are unsure than disputing with them.